Supreme Court of Pakistan

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Supreme Court of Pakistan
عدالت عظمیٰ پاکستان
Emblem of the Supreme Court of Pakistan.svg
فاحكم بين الناس بالحق
So judge between the people in truth
(Quran 38:26)
Established 14 August 1947; 69 years ago (1947-08-14)
As Federal Court
2 March 1956; 60 years ago (1956-03-02)
In its modern form)
Country Pakistan
Location Islamabad
Coordinates 33°43′41″N 73°05′55″E / 33.72806°N 73.09861°E / 33.72806; 73.09861Coordinates: 33°43′41″N 73°05′55″E / 33.72806°N 73.09861°E / 33.72806; 73.09861
Composition method Executive's selection with the Presidential confirmation
(Qualifications imposed)
Authorized by Constitution of Pakistan
Decisions are appealed to President of Pakistan for Clemency/Commutation of sentence
Judge term length 65 years of age
Website www.supremecourt.gov.pk
Chief Justice of Pakistan
Currently Hon'ble Justice Saqib Nisar
Since 31 December 2016
The Supreme Court of Pakistan.

The Supreme Court of Pakistan (Urdu: عدالت عظمیٰ پاکستان‎; Adālat-e-Uzma Pākistān) is a highest and an apex court in the judicial hierarchy of Pakistan.[1]

Established in accordance to the Part VII of the Constitution of Pakistan, it has ultimate and extensive appellate, original, and advisory jurisdictions on all courts (including the high courts, district, special and Shariat court), involving issues of federal laws and may act on the verdicts rendered on the cases in context in which it enjoys jurisdiction. In the court system of Pakistan, the Supreme Court is the final arbiter of legal and constitutional dispute as well as final interpreter of constitutional law.

In its modern composition, the Supreme Court is incorporated of Chief Justice of Pakistan, fifteen justices and two ad-hoc who are confirmed to their appointment by the President upon their nominations from the Prime Minister's selection based on their merited qualifications. Once appointed justices are expected to completed a designated term and then retire, unless their term is terminated through resignation or impeachment by the Supreme Judicial Council resulted in a presidential reference in regards to the misconduct of judge(s). In their discourse judgement, the justices are often categorized as having the conservative, textual, moderate, and liberal philosophies of law in their judicial interpretation of law and judgements.:1915[2]:436[3]

The Supreme Court has a permanent seat in Islamabad and meets at the Supreme Court Building at the Constitution Avenue. The Supreme Court is sometimes colloquially referred to as SCOP, in analogy to other PMOP.[4]

History[edit]

In 1861, the British government in India enacted the Indian High Courts Act that created the high courts in all over the Indian subcontinent in various provinces while abolishing the supreme courts Calcutta, Bombay, Madras, Lahore, and also the Panchayati system in autonomous presidencies.:234[5]

Until the enactment of the Government of India Act in 1935 that created the Federal Court, these new high courts had the distinctionary powers of being the highest Courts for all cases.:235–236[5] The Federal Court had wide range of jurisdictions to resolve disputes between the provinces, presidencies, and the British government of India, often hearing appeals against judgements of the High Courts.:44–50[6]

After the independence of Pakistan as an aftermath of British partition of India in 1947, the Federal Court was also partitioned between India and Pakistan as Justice Sir Harilal Kania became the first Chief Justice of India and Justice Sir Abdul Rashid becoming the first Chief Justice of Pakistan.:294[7]

While the tradition of British law culture continues to remain an integral part of the Judicature, the modern existence of the Supreme Court of Pakistan came when the first set of the Constitution of Pakistan was promulgated on 23 March 1956.:10–11[8]:24–26[9] The ratification of the Constitution of Pakistan reestablished the Supreme Court in 1956, replacing the name "Federal Court" to "Supreme Court", initially had its seat in Karachi where the Sindh High Court exists now.[4] In successive years, the Supreme Court was moved to Lahore High Court until the Supreme Court was permanently moved into its new building constructed in Islamabad in 1964.[4]

Constitutional composition[edit]

Size of Court[edit]

The Part VII of the Constitution of Pakistan reconstituted the composition of Supreme Court and the high courts but it does not specify the number of justices to be served in the Supreme Court.[10] Qualifications to be served as a supreme court justice are strictly imposed that are based on merit, personal intellecutualism, and experiences as a judge in the high courts.[11]

In 1947, the Supreme Court consisted of a Chief Justice and six senior judges from Sindh, Punjab, NWFP, Balochistan, and East Bengal.:94–95[12] Over the several successive years, the work of the Court increased and cases began to accumulate, leading the Supreme Court requesting the Parliament to increase the number of judges.[4] As the number of the justices has increased, they sit in smaller benches of two or three (referred to as a division bench[13]), however, coming together in larger benches of five or more (referred to as a constitution bench) when required to settle fundamental questions of law.:16–17[8][14]

Eligibility, nomination and confirmation[edit]

The Constitution of Pakistan strictly prohibits a foreign citizen/ or an expatriate being eligible for the Supreme Court.[15] The nomination of justices in the Supreme Court comes from an executive selections made by the Prime Minister based on judges' merited qualifications, personal intellectualism, and experiences as judge in high courts.[16] The President then confirms the nomination summary and eventually appoints the Chief Justice and judges in the Supreme Court.[17]

The Constitution clearly states:

  • A citizen of Pakistan[15] who has been:
      • has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or[18]
      • has for a period of, or for periods aggregating not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).[19]

Since 1990s, the nomination and confirmation process has attracted a considerable attention from the print press and electronic media, as news media often comments and opinionate the executive'e selection for the appointment depends on whether their track record aligns with the their ideology.:388–389[20] Appointments of Chief Justices Saeeduzzaman Siddiqui, S.A. Shah, Iftikhar Chaudhry, Faisal Arab, and T.H. Jillani have gain prominent attention from media in all over the country, mainly due to their ideological and philosophical leanings.:xxxx[21][22]

Furthermore, the major and influential reccomendations for judges to be elevated at the Supreme Court as justices comes from the Judicial Commission that is chaired by the Chief Justice of Pakistan who prepares the qualification summary before the nomination sent to executive.[23]

Ad–hoc appointments and removal[edit]

There has been Ad hoc appointment in the supreme court made when the quorum of Judges is not possible to complete the sitting number of justices in the court, or if it is necessary to increase the number of justices in the Supreme Court.[24] The nomination comes directly from the Judicial Commission chiared by the Chief Justice who prepares the nomination summary as President confirms their appointments.[25]

As of current, there are two justices are on the ad-hoc appointment that are from the Federal Sharia Court.[26]

A judge of the Supreme Court can be removed under the Constitution only on grounds of proven misconduct or incapacity and by an order of the President of Pakistan.[27] A written reference has to be sent to the Supreme Judicial Council that will conduct the hearings of allegations of misconduct that would determine the removal of judge.[28]

Tenureship, salaries and post-retirement[edit]

The Judicial Commission determines the salary, other allowances, leave of absence, pension, etc. of the Supreme Court justices.[29] A Supreme Court justice gets ₨. 558,907.00 ($5,333.85) with additional allowances of ₨. 259,009.00 ($2471.81).[29] Other benefits include the free housing and medical treatment as well as tax-free electricity bills.[29] A judge who has retired as a justice of the Supreme Court is debarred from practising in any court of law or before any other authority in Pakistan.[30]

Judicial independence[edit]

The Supreme Court has the explicit de jure powers and enjoys the powerful judicial independence to block the exercise of certain Prime Minister's executive powers or Parliament's legislative powers that repugnant to Constitution.[31] The Supreme Court has maintained its institutional integrity and has been able to maintain its authority to some degree in the face of martial law in Pakistan in last decades.:144–145[32]

In another example of a de jure power granted to the Court, article 17 of the Constitution states:

Every citizen, not being in the service of (State of) Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Government declare that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

— Article 17:Freedom of association; Chapter I: Fundamental Rights and Principles, Constitution of Pakistan, Chapter source[33]

The Supreme Court thus provides, in principle, an important safeguard against the abuse of laws that could potentially have politically repressive consequences or in clear violation of human rights.[31]

The Constitution also allows the Supreme Court to exercise powers and take sua sponte actions against the person, regardless of its statue, or the authority, of being disobedient to or disrespectful towards the Supreme Court, its justices, and its officers in the form of behavior that opposes or defies the Supreme Court's institutional integrity and popular authority.[34]

In 1997, Chief Justice S.A. Shah found Prime Minister Nawaz Sharif of contempt of court but the order itself was voided by the Supreme Judicial Council.:45–46[35] In 2012, Chief Justice Iftikhar Chaudhry retroactively barred Prime Minister Yousaf Raza Gillani of holding the office after the latter was found of in charges of court of contempt and refusing to follow the court's orders.[36]

In 2013, the Supreme Court took suo motu actions againt populist Imran Khan of criticising against the judgement of the Supreme Court's senior judges in regards to the elections.[37] The case was later dropped when Attorney-General assured the Supreme Court justices that Imran Khan did not insubordinate the judiciary.[37]

Court demographics[edit]

In practice awarded by Constitution, judges of the supreme court have been selected so far, mostly from amongst judges of the high courts. The Constitution allows the judges to be appointed at the Supreme Court regardless of colour, race, and religious sect. Justices A.S.M. Akram,Fazal Akbar, Amin Ahmed, Abdus Sattar, and Hamoodur Rahman (Chief Justice) were the Bengali/Bihari jurists who served as senior justices in the Supreme Court. In 1960, Justice Alvin Robert Cornelius became the first Christian to be served as Chief Justice.:55[38]

In 1970s–1980s, Justice Dorab Patel was the first Zorastrian, followed by Justice Rustom Sidwa who served as Supreme Court justice from 1989 until 1993.:226–227[39] Justice Rana Bhagwandas was the first Hindu jurist who has distinction being the Chief Justice of Pakistan in 2007.

Judicial and philosophical leanings[edit]

The jurists/judges do not represent or receive the official political endorsements from the nation's political parties which is an acceptable professional practice in the executive branch of the government.:199–200[40] As their American counterparts in the U.S. Supreme Court, the Jurists philosophical leanings in the Supreme Court are often categorized as conservative, moderate, liberal, and textualist that reflected in their judicial interpretation of the judgements in the impending cases of importance.:xxx[41][42]:67–68[43]

In 1947, Governor-General Muhammad Ali Jinnah confirmed the nomination of Justice Sir Abdul Rashid, at the behest of Prime Minister Liaquat Ali-Khan, was said to be a national conservative leanings in his judgement.:60–65[43] His successor, Chief Justice Muh'd Munir, was a liberal in his jurisprudence but sided with conservative judgement when validated dissolution of the first Constituent Assembly in 1954 and the National Assembly in 1958 in the light of doctrine of necessity.:67[43] Under the Chief Justice Muh'd Shahabuddin, the Supreme Court had the conservative leanings in regards to the constitutionalism and their judgements in the cases of important issues.:67–68[43] Chief Justice Shahabuddin plays a crucial role in drafting the second set of the Constitution of Pakistan which incorporated the liberal ideas with the important Islamic provisions.:68[43]

In 1960, President Ayub Khan appointed Justice Alvin Robert Cornelius who took much liberal approach in his jurisprudence when deciding cases on fundamental rights against the executive overreach.:436[3] Justice Cornelius led Supreme Court's verdicts on many constitutional cases were carefully sided with the Islamic ideas but provided much broader role of liberal ideas to safeguard the fundamental rights ordinary citizens while being critical of the state emergency.:437[3]

In 1968, the Supreme Court greatly divided when Chief Justice Hamoodur Rahman presided the case hearings after President Yahya Khan declared martial law and suspended the writ of the constitution.:59[44] In the views of Chief Justice Rahman, the martial law was invalid and notably ruled that Yahya Khan's assumption of power was "illegal usurpation".[44] The Supreme Court also overruled and overturned its convictions that called for validation of martial law in 1958.[44] Despite rulings, there was a split decision between the moderation justices, including Chief Justice Rahman, and conservative leaning justices of the Supreme Court who "condoned" the actions in the light of "doctrine of necessity".:60–61[44] The de jure powers of the Supreme Court has increased since presiding the War Enquiry Commission in 1974, intervening in events that Supreme Court justices viewed as violation of human rights by the executive's authorities.

In 1977, the Supreme Court had again legalized the martial law in 1977 in the light of "doctrine of necessity" and denied took petitions to review its decision. During this time, Supreme Court justices were described as notoriously conservatives and only few moderats, appointed by Prime Minister Zulfikar Ali Bhutto as his role as President in 1971–73.:1915[2] The Supreme Court, however, did took the petitions to review the case of Zulfikar Ali Bhutto, after his counsels filed an appeal against the verdict of Lahore High Court.:365[45] The Constitution Bench formed under Chief Justice Sh. Anwarul Haq, had contained Justice Muhammad Akram, Justice Dorab Patel, Justice Mohammad Haleem, Justice Nasim Hasan Shah, Justice Ghulam safdar Shah, Justice Kareem Illahi, Justice Waheedudin Ahmad, and Justice Kaisar Khan.:61[46] By 1979, the Supreme Court greatly divided with Justice Dorab Patel, Justice G.S. Shah, and Justice Moh'd Haleem, who had the moderate and liberal leanings in their jurisprudence strongly disagreed with Bhutto's sentence of Capital punishment.:273–274[47] On the other hand, Chief Justice Haq, Justice N.H. Shah, Justice Waheedudin Ahmad, and Justice Kaisar Khan, were described as having conservative/texualist ideology in their rulings and found Bhutto suitable for capital punishment; hench, marking a split decision by 4:3.[48]

In 1993, Prime Minister Benazir Bhutto controversially elevated the Supreme Court jurist, SA Shah, who had known for his liberal jurisprudence, as Chief Justice over two senior ranking jurists at the Supreme Court.:xxx[49] However, Justice Shah's judicial leanings did not protected the Benazir' administration when it was dismissed by President Farooq Leghari over allegations on corruption.:xxx[49] In 1997, judicial crises reached its peak when Supreme Judicial Council took up the case against Justice Shah's appointment who eventually resigned from his office and succeeded by conservative jurist Ajmal Mian, only to be replaced with conservative jurist Saeeduzzaman Siddiqui as the new Chief Justice.:63–64[50]

On 12 October 1999, the Supreme Court partially validated the martial law in the light of "doctrine of necessity" on the technicality but Chief Justice Saeeduzzaman Siddiqui decided to hear the petitions over the legality of the martial law.:25[51] Although, the Supreme Court had only validated the martial law for three-years only, the Supreme Court's jurists and Justice Saeeduzzaman Siddiqui in clear view of this coup as a "violation of constitution" as Sharif's lawyers made a ground base for finding Musharraf of treason.[52]

General Musharraf, acting as Chief Executive, forcefully retired the conservative leaning jurists and elevated the judges who had known to have libertarian views in their jurisprudence at the Supreme Court, including Justice Irshad Hasan as Chief Justice.:145[53] In 2002, The Supreme Court supervised the general elections successfully oversaw the transition of powers to from the office of Chief Executive to Prime minister.:350[54] The legalization of Contempt of court act further strengthened the judicial independence of the Supreme Court in 2004 when Shaukat Aziz became prime minister.:350–351[54]

Part VII, Chapter 2 of the Constitution (articles 176 through 191) deals with the powers, composition, rules, and responsibilities of the Supreme Court.

These articles concern:

  • Article 176 – composition of the Court
  • Article 177 – appointment and qualifications of the Chief Justice
  • Article 178 – oath of office
  • Article 179 – retirement
  • Article 180 – vacancy, absence, or inability of the Chief Justice
  • Article 181 – vacancy, absence, or inability of other justices
  • Article 182 – ad hoc justices
  • Article 183 – location of Court
  • Article 184 – jurisdiction in a dispute between two or more governments
  • Article 185 – jurisdiction to hear and determine appeals
  • Article 186 – if requested, advise the President on important matters of law
  • Article 186A – authority to transfer venue
  • Article 187 – orders and subpoenas
  • Article 188 – power to review its own judgements and orders
  • Article 189 – binding nature of Supreme Court's decisions on all other Pakistani Courts
  • Article 190 – all executive and judicial authorities in Pakistan bound to aid the Supreme Court

In addition to these articles, the Constitution also makes numerous references to the Supreme Court in other chapters and sections. An important function of the judiciary branch is to provide checks and balances to the power of the other branches of government.

The Supreme Court under Pervez Musharraf is an exception to this rule of constitutional authority. That court took oath not under the constitution of Pakistan but under a military Legal Framework Order.

De facto power[edit]

The de jure powers of the court as outlined in the Constitution can only be understood in the context of Pakistan's political history, during which the armed forces has seized power, declared martial law and suspended the constitution. Despite the military interventions in the government, the court has maintained its institutional integrity and has been able to maintain its authority to some degree in the face of military rule. Since in 1970, Bengali Chief Justice Hamoodor Rahman published the reports of Hamoodur Rahman Commission, formed to investigate the failure and fall of East-Pakistan. The de facto powers of the Supreme Court increased immensely thereafter.

In 1977 the Supreme Court legitimized the 1977 Pakistani coup d'état (see Operation Fair Play). On 8 March 1978 the Supreme Court upheld the death sentence of former prime minister Zulfikar Ali Bhutto, who was executed on 4 April 1979 by the orders of Supreme Court. On 12 October 1999 however, the Supreme Court ordered that chairman joint chiefs General Pervez Musharraf could only allow military rule to remain in place for three years. The supreme court began hearing the corruption cases and hijacking controversy against former prime minister Nawaz Sharif, and found him guilty after sentencing him life imprisonment in a short trial. As a result, Musharraf held a national referendum on 30 April 2002, followed by general elections in October 2002— a move that substantially validated the return of democracy. The supreme court supervised the 2002 general elections and successfully oversaw the transition of powers to President to prime minister of Pakistan. The political powers of supreme court were further extended and solidified its political position in 2004 when Shaukat Aziz became prime minister.[54] Aziz's economy policy measure programmes expanded the political role of Supreme Court of Pakistan in a higher level of the government and to target high-level of government corruption independently without government interferences or government influence.[54]

Despite its controversial rulings, the Supreme Court has the strong support of the people and the elite and is one of the most respected institutions in the nation. Even during military rule, when the Court might have been expected to be subject to a supra-constitutional dispensation, it has used its institutional authority to maintain some influence over political events.

Court Composition[edit]

Unless the President records written reasons for deviating from this rule, justices retire at age sixty five.

Supreme Court of Pakistan from govt flats, Islamabad.

Chief Justices of Pakistan[edit]

List of past and current Chief Justices of Pakistan

The current Chief Justice of Supreme Court of Pakistan is Justice Mian Saqib Nisar.

Justices[edit]

The Supreme Court of Pakistan is currently made up of the following Justices (in order of seniority). These include seventeen regular judges including the Chief Justice and two ad-hoc judges who were reappointed again after their retirement.[55]

No. Name Appointment Retirement Elevated from Note(s)
1 Chief Justice Mian Saqib Nisar 18 February 2010 17 January 2019 Lahore High Court Appointed as a Supreme Court Judge on 18 February 2010. He was elevated to Chief Justice of Pakistan on 31 December 2016.
2 Justice Asif Saeed Khan Khosa 18 February 2010 20 December 2019 Lahore High Court According to the seniority list, he will be the 26th Chief Justice of Pakistan.
3 Justice Amir Hani Muslim 14 February 2011 31 March 2017 Sindh High Court
4 Justice Ejaz Afzal Khan 17 November 2011 7 May 2018 Peshawar High Court
5 Justice Gulzar Ahmed 16 November 2011 1 February 2022 Sindh High Court According to the seniority list, he will be the 27th Chief Justice of Pakistan.
6 Justice Sh. Azmat Saeed 1 June 2012 19 August 2019 Lahore High Court
7 Justice Mushir Alam 20 September 2013 18 August 2021 Sindh High Court
8 Justice Dost Muhammad Khan 31 January 2014 20 March 2018 Peshawar High Court
9 Justice Umar Ata Bandial 17 June 2014 16 September 2023 Lahore High Court According to the seniority list, he will be the 28th Chief Justice of Pakistan.
10 Justice Qazi Faez Isa 5 September 2014 26 October 2024 Balochistan High Court According to the seniority list, he will be the 29th Chief Justice of Pakistan.
11 Justice Maqbool Baqar 17 February 2015 4 April 2022 Sindh High Court
12 Justice Manzoor Ahmad Malik 5 November 2015 30 April 2021 Lahore High Court
13 Justice Sardar Tariq Masood 5 November 2015 10 March 2024 Lahore High Court
14 Justice Faisal Arab 14 December 2015 4 November 2020 Sindh High Court
15 Justice Ijaz Ul Ahsan[56] 28 June 2016 4 August 2025 Lahore High Court According to the seniority list, he will be the 30th Chief Justice of Pakistan.
16 Justice Mazhar Alam Khan Miankhel[57] 30 December 2016 13 July 2022 Peshawar High Court
17 Vacant
Ad-hoc Judges
No. Name Appointment Retirement Note(s)
1 Justice Dr. Muhammad Al-Ghazali[58]
2 Justice Dr. Khalid Masud[58]

Provisional Constitutional Order and Supreme Court[edit]

PCO 1981 (General Zia ul Haq Martial Law)[edit]

The first ever Provisional Constitutional Order (PCO) was declared by General Zia ul Haq on 25 March 1981.

Name Appointed Normal Retirement Action on PCO oath
Hon. Justice Dorab Patel  ?  ? refused PCO oath, asked to resign
Ad hoc Judge Fakhar uddin G. Ebrahim  ?  ? refused PCO oath, asked to resign
Justice Molvi Mushtaq  ?  ? willing to take oath but not invited to take oath
Chief Justice Justice Anwaar-ul-Haq  ?  ? not invited to take oath

Shariat Appellate Bench[edit]

Established by General Muhammad Zia ul-Haq in 1980, the Shariat Appellate Bench is composed of three Muslim Judges of the Supreme Court,[59] and two ad hoc judges drawn either from the Federal Shariat Court or from among the Ulema.[60] Decisions made the Federal Shariat Court may be appealed to the Appellate Bench, as the Bench is the final authority on Islamic law in Pakistan.[61]

PCO 1999 (General Pervez Musharraf First Martial Law)[edit]

The second PCO in the history of Pakistan was declared by General Pervez Musharraf on 14 October 1999.[62] When the PCO was proclaimed, at first the judiciary was not asked to take an oath.[clarification needed] On 26 January 2000 Musharraf issued an order "Oath of Office (Judges) Order, 2000" that required the judiciary to take oath of office under the PCO. The then Chief Justice Saeeduzzaman Siddiqui and 5 other judges of the Supreme Court refused to take any oath in contravention to the oath they took under the 1973 Constitution, when they became judges. Majority of the judges had more than 3 years remaining in their office. Refusing to take oath deprived them from continuing as judges, which was later termed as un-constitutional move by General Musharraf.[63]

Justice Iftikhar Muhammad Chaudhary, the present chief justice of the Supreme Court, although took oath under the PCO, but the senior judges refused to take oath.[citation needed]

see Pakistani coup d'état 1999

PCO 2007 (General Pervez Musharraf Second Martial Law)[edit]

The attack on the Supreme Court in 1997[edit]

Following the establishment of Anti Terrorism Courts and the Fourteenth Amendment in November 1997, legislators from different parties brought the matter before the Supreme Court under Chief Justice Sajad Ali Shah. Nawaz Sharif, Prime minister at that time, harshly criticized the Chief Justice during the proceedings and was found in contempt.

On 30 November 1997, Sharif appeared before the Supreme Court along with party workers, members, chief ministers, and constituents to hear the proceedings. Unruly party workers stormed into the Supreme Court, forcing Chief Justice Sajjad Ali Shah to remove the finding of contempt against Sharif. Hundreds of PML-N supporters and members of its youth wing, the Muslim Students federation (MSF), breached the police barrier around the courthouse when defence lawyer S.M. Zafar was arguing Sharif's case.

A journalist rushed into the courtroom and warned the bench of an impending attack. The Chief Justice rose abruptly, thanked Zafar and adjourned the hearing. The justices quickly left the courtroom but workers were able to enter, shouting slogans and damaging furniture.

The mob, led by ruling Punjabi party member Sardar Naseem and the retired Colonel Mushtaq Tahir Kheli, Sharif's political secretary, chanted slogans against the Chief Justice. Famous PTV anchor Tariq Aziz threw and broke the portrait of the founder of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah. The mob also attacked Pakistan Peoples Party senator Iqbal Haider. Police eventually managed to restore normalcy using batons and tear gas both inside and outside the courthouse, but the court could only proceed for about 45 minutes.

The Supreme Court under Musharraf[edit]

Shortly after General Musharraf overthrew Sharif in the 1999 Pakistani coup d'état, the opposition challenged the legitimacy of the coup and asked the court to rule on its legality.[64] On 12 May 2000 the Court rendered a nuanced verdict.[62][65]

  • In its preamble, the Court
    • rejected the options of "complete surrender" to the regime or total opposition which, in its judgement, would have led to the "closure of the courts". It chose a middle ground (praised by retired US judge John Clifford Wallace) that allowed the Court to maximize its influence.
    • asserted that it had the inherent power to examine the validity of Musharraf's orders, even orders purportedly restraining the Court from questioning his proclamations.
    • called Musharraf's coup an "extra-constitutional action".
  • In its judgement, however, the Court
    • accepted the coup on the grounds of
      • the doctrine of state Necessity (a situation having arisen for which "there was no remedy provided in the Constitution", checks and balances such as Article 58(2)(b) having been removed by the Thirteenth Amendment, hence Necessitas facit licitum quod alias non est licitum).
      • the principle of salus populi est suprema lex.
      • the principle "that the government should be by the consent of the governed, whether voters or not" (the court took note of the fact that the takeover was widely welcomed, and little-protested, and hence that the regime had the implied consent of the governed).
    • asserted the right of the Superior Courts to review the orders, proceedings, acts, and legislative measures of the Musharraf regime.
    • termed the situation a "case of constitutional deviation for a transitional period".
    • accepted the government's argument that the electoral rolls were outdated and that fresh elections could not be held without updating the electoral rolls, and that two years were required to do so.
    • gave Musharraf until 12 May 2002 to hold elections.
    • reserved for itself the right to review/re-examine the continuation of Musharraf's emergency powers.

Although the government, before this judgement, had not given a timetable for the restoration of democracy – having argued that it needed an indefinite and possibly prolonged time to reform the country – Musharraf publicly submitted to the Court's judgement.[66] The elections were duly held in October 2002 as ordered and the Constitution was revived. However, Musharraf later decided to retain power and enacted the Seventeenth Amendment in December 2003, largely incorporating the 2002 Legal Framework Order into the Constitution.[62]

Pakistani legal theorists[who?] have posited that Pakistan's "grundnorm", the basis for its Constitutional convention and system of laws, continues in effect (and the Supreme Court therefore retains its authority) even when the written constitution is suspended by the imposition of a military dictablanda.

Reference against Chief Justice[edit]

On 9 March 2007 a presidential reference was served to the Chief Justice, Iftikhar Muhammad Chaudhry, attempting to suspend him. The government ordered him to go on compulsory leave, but on 20 July 2007 the Supreme Court unanimously overturned the compulsory leave order and by a 10–13 majority also ordered Chaudhry reinstated as Chief Justice.[62]

The Court nonetheless ruled that the Provisional Order 27 of 1970, which removed executive power to suspend judges, was unconstitutional.Text of Supreme Court Order

State of Emergency[edit]

Immediately following the imposition of the state of emergency on 3 November 2007, the Chief Justice Iftikhar Muhammad Chaudhry was removed from the Supreme Court and arrested by troops of the 111th brigade of Pakistan Army sent by General Musharraf (who resigned in August 2008 under impeachment pressures).

Until the state of emergency was declared, Justices of the Supreme Court were:

Sex Scandal involving Supreme Court Justices[edit]

According to The Times, the justices who pledged allegiance to Musharraf had earlier been caught engaging in sexual acts with prostitutes. The article alleged that photographs of the judges engaging in sexual acts were used to blackmail the judges to take the oath of allegiance and make rulings favorable to the military.[67]

Supreme Court composition under Musharraf after 3 November 2007[edit]

The Supreme Court of Pakistan consisted of the following justices who took the Provisional Constitutional Order (PCO) of 3 November 2007:

  • Hon. Chief Justice Mr. Justice Abdul Hameed Dogar
  • Hon. Justice Muhammad Nawaz Abbasi
  • Hon. Justice Faqir Muhammad Khokhar
  • Hon. Justice M. Javed Buttar
  • Hon. Justice Saiyed Saeed Ashhad.
  • Hon. Justice Ijaz-ul-Hassan
  • Hon. Justice Muhammad Qaim Jan Khan
  • Hon. Justice Mohammad Moosa K. Legari
  • Hon. Justice Ch. Ejaz Yousaf
  • Hon. Justice Muhammad Akhtar Shabbir
  • Hon. Justice Zia Perwez
  • Hon. Justice Mian Hamid Farooq
  • Hon. Justice Syed Sakhi Hussain Bokhari
  • Hon. Justice Syed Zawwar Hussain Jaffery
  • Hon. Justice Sheikh Hakim Ali (Took PCO Oath to Lahore High Court, elevated to Supreme Court on 8 February 2008)

Justice Abdul Hameed Dogar took the oath of Chief Justice even after a 7-member Supreme Court that included Chief Justice Iftikhar Muhammad Chaudhry nullified the imposition of emergency, suspension of constitution, and PCO. The Court instructed the justices not to take oath under the PCO, and all military personnel not to obey any illegal orders.[68]

On 15 February 2008 the Supreme Court delivered a detailed judgement to validate the Proclamation of Emergency on 3 November 2007, the Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007.[62] This judgement was made by the full court and written by Chief Justice Abdul Hameed Dogar. According to the judgement, "The learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction".[69]

Recent events[edit]

Restoration of Judges[edit]

On 15 March 2009 a two-year-old lawyers' movement working for restoration of the judiciary as it existed prior to the state of emergency called for a long march and a sit-in in Islamabad. Before the procession could reach Islamabad, the Prime Minister Yousuf Raza Gilani appeared on national television and announced unconditional restoration of the judiciary. On 17 March 2009 the formal official notification for restoration of the judiciary was issued. As the result of the notification, all judges who had not retired due to age limit and had not re-taken oath were restored back. Justice Javaid Iqbal, Justice Ijaz Ahmed, Justice Khalil-ur-Rehman Ramday and Justice Raja Fayyaz Ahmed were restored to their position as of 2 November 2007 with immediate effect. Justice Iftikhar Mohammad Chaudhry was notified to re-assume his office on 22 March 2009. Justice Rana Bhagwandas and Justice Falak Sher had since retired.[70]

Long March Controversy[edit]

General Ashfaq P. Kayani, the Chief of Army Staff, also had an important role by silently intervening and encouraging a rapprochement between the government and the opposition. Neither side acknowledged this role, however, until lawyers' movement leader Aitezaz Ahsan publicly admitted Kayani's role. There were rumours that protestors and law enforcement would have violently collided otherwise had he not intervened.[70]

Independence of the judiciary[edit]

The restoration of the judges resulted from immense public pressure and led the judiciary to begin a quest for independence. The goal was to ensure a strong and efficient judicial system that could quickly deliver justice to the public. The Supreme Court took notice of several important constitutional and other matters in this period that related to the public interest. These matters included the constitutional petition on PCO judges to declare the 3 November 2007 actions null and void and the constitutional petition on the national reconciliation ordinance (NRO) to declare it null and void. The Supreme Court has also been vigilant on corruption cases related to the current ruling elite, acting in cases such as the Hajj scam, rental power projects, steel mills of Pakistan, and National Insurance Corporation Limited (NICL). This judicial activism and the slowing of government productivity without corruption has created a tension between the judiciary and other government branches.[70]

Constitutional petitions No. 8 and 9 of 2009[edit]

Of the 14 justices that rendered a verdict related to taking an oath under the PCO, 12 had taken the oath themselves. However, they controversially did not apply the judgement to themselves.

Name Status
Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Took Oath on PCO as Chief Justice Balochistan High Court on 26 January 2000
Mr. Justice Javed Iqbal Took Oath on PCO as Judge of Balochistan High Court on 26 January 2000
Mr. Justice Sardar Muhammad Raza Khan Took Oath on PCO as Judge of Peshawar High Court on 26 January 2000
Mr. Justice Khalil-ur-Rehman Ramday Took Oath on PCO as Judge of Lahore High Court on 26 January 2000
Mr. Justice Mian Shakirullah Jan Took Oath on PCO as Judge of Peshawar High Court on 26 January 2000
Mr. Justice Tassaduq Hussain Jillani Took Oath on PCO as Judge of Lahore High Court on 26 January 2000
Mr. Justice Nasir-ul-Mulk Took Oath on PCO as Judge of Peshawar High Court on 26 January 2000
Mr. Justice Raja Fayyaz Ahmed Took Oath on PCO as Judge of Balochistan High Court on 26 January 2000
Mr. Justice Ch. Ijaz Ahmed Took Oath on PCO as Judge of Lahore High Court on 26 January 2000
Mr. Justice Ghulam Rabbani Took Oath on PCO as Judge of Sindh High Court on 26 January 2000
Mr. Justice Sarmad Jalal Osmany Took Oath on PCO as Judge of Sindh High Court on 26 January 2000
Mr. Justice Muhammad Sair Ali Khattak Appointed as a Judge of the Lahore High Court Lahore on 2 May 2001
Mr. Justice Mahmood Akhtar Shahid Siddiqui Appointed as a Judge of the Lahore High Court Lahore on 21 September 2001
Mr. Justice Jawwad S. Khawaja. Took Oath on PCO as Judge of Lahore High Court on 26 January 2000

As a result of the 31 July 2009 decision handed down in the case of Constitutional Petitions 8 and 9 of 2009, the following justices resigned before their cases were referred to Supreme Judicial Council:

Name Appointed Status on 2 Nov 2007 PCO oath, Result of Judgement
Faqir Muhammad Khokhar 10 January 2002.[71] Supreme Court Judge Khokkhar resigned from the Court on 5 August 2009. His normal retirement would have been 15 April 2010[72]
Justice M. Javed Buttar 29 July 2004[71] Supreme Court Judge Buttar resigned from the Court on 5 August 2009. His normal retirement would have been 15 November 2013[72]

In addition to the above justices, the following justices were removed from the Supreme Court of Pakistan[73] on the ground that their appointment to the court was made without consultation with the de jure Chief Justice of Pakistan.

Name Appointed Status on 2 Nov 2007 PCO oath, Result of Judgement
Justice Muhammad Qaim Jan Khan 6 November 2007 Peshawar High Court Judge Khan became a Supreme Court justice on 6 November 2007. He was removed and deemed to have retired as a judge.
Justice Ijaz-ul-Hassan 6 November 2007 Peshawar High Court Judge Ijaz-ul-Hassan became a Supreme Court justice 6 November 2007. He was removed and deemed to have retired as a judge.
Justice Mohammad Moosa K. Legari 6 November 2007 Judge Sindh High Court Legari became a Supreme Court justice 6 November 2007. He was removed and deemed to have retired as a judge.
Justice Ch. Ejaz Yousaf 6 November 2007 Chairman Press Council[74] Yousaf was a retired Chief Justice of the Federal Shariat Court before he became a Supreme Court justice.[74] He was removed from the bench.
Justice Zia Perwez 13 November 2007 Judge Sindh High Court Perwez became a Supreme Court justice 13 November 2007. Perwez was removed and reinstated as a judge for the Sindh High Court.
Justice Mian Hamid Farooq 10 December 2007 Lahore High Court Judge Farooq became a Supreme Court justice 10 December 2007. He was removed and deemed to have retired as a judge.
Justice Syed Sakhi Hussain Bokhari 10 December 2007 Lahore High Court Judge Bokhari became a Supreme Court justice 10 December 2007. He was removed and reinstated as a judge for the Lahore High Court.
Justice Syed Zawwar Hussain Jaffery 10 December 2007 Retired Sindh High court Judge Jaffery became a Supreme Court justice 10 December 2007. He was removed and deemed to have retired as a judge.
Justice Sheikh Hakim Ali 8 February 2008[75] Lahore High Court Judge Ali became a Supreme Court justice 8 February 2008. He was removed and deemed to have retired as a judge.
Justice Muhammad Furrukh Mahmud 8 February 2008[76] Retired Lahore High Court Judge[72] Mahmud became a Supreme Court justice 8 February 2008. He was removed from the bench.
Hon. Sarmad Jalal Osmany 19 September 2008 Sindh High Court Judge Osmany refused the PCO oath and was appointed to Supreme Court on 19 September 2008. He was removed from the bench of Supreme Court and reverted to a Sindh High Court Judge. He was then appointed as Chief Justice of Sindh High Court on 1 August 2009.
Justice Sardar Muhammad Aslam 7 March 2009[citation needed] Lahore High Court Judge Aslam took the PCO oath on 3 November 2007 and became a Supreme Court Justice on 7 March 2009. He was removed and deemed to have retired.

Controversial aspect of the decision[edit]

The decision of the Court summarily removed all justices of the higher judiciary who were not part of it as of 2 November 2007. Their removal was ordered on the grounds that the de jure Chief Justice was not allowed to advise in these cases. In the same decision the court held that the de jure Chief Justice from 3 November 2007 to 22 March 2009 was Justice Chaudhry.[70]

There were three groups of removed justices:

  • Those elevated to higher courts who initially took oath under the PCO
  • Those who were elevated to higher courts after restoration of the Constitution and were appointed by Musharraf
  • Those who were elevated to higher courts after restoration of the Constitution and were appointed by Asif Ali Zardari

The Supreme Court bench that rendered the decision consisted entirely of justices who had taken oath under the PCO of 1999 themselves, but were already sitting justices of the higher judiciary at the time and had taken a constitutional oath. The 1999 PCO and decisions made under it were given constitutional protection by Seventeenth amendment.[70]

This decision has resulted in situations where:

  1. newly appointed justices who never took any sort of oath under any PCO have been removed
  2. sitting justices who took an oath under the 2007 PCO are still acting as justices, though their cases will be sent to Supreme Judicial Council
  3. sitting justices who were reappointed and took oath under Justice Dogar are still acting as justices with no action
  4. justices who took oath under the PCO of 1999 are still functioning as justices of higher judiciary

Critics of the decision question the fact that some PCO judges are still working and some non-PCO judges have been sacked.

Review petition filed by Lahore High Court non-PCO removed judges[edit]

Removed ad hoc judges of the Lahore High Court have filed several petitions in the Supreme Court in Lahore for review of its judgment, which sent 76 judges of Supreme Courts and High Courts immediately home.

These judges argue that they were qualified to be appointed as judges of the High Court in accordance with the requirements of Article 193(2)of the 1973 Constitution and were offered to serve as ad hoc judges following the consultation required under the Constitution. They accepted the offer and took oath when the state of emergency was lifted. They never took oath under a PCO and continued performing the functions of judges of the High Court until judgement was rendered against them.

These judges were appointed by Lahore High Court Chief Justice Justice Zahid Hussain, who is still a justice of the Supreme Court of Pakistan and is not being tried before the Supreme Judicial Counsel.

The petition also noted that none of the sacked judges were made parties to the decision against them, nor were they able to comment in the hearing or in some cases aware that the hearing was taking place. They also allege that no copy of the decision was sent to the High Court or to the judges concerned.

Key Controversial points[edit]

According one news article,[77] the Supreme Court has applied its judgement retroactively, having effect from 3 November 2007. The 14-member Supreme Court bench has not, however, applied the sanction to judges who took oath under the 1999 PCO. Some of these are current justices, and some have not yet taken a constitutional oath.

Critics of the decision also argue that it is inconsistent with the principles laid down in Malik Asad Ali's case where it was held that the Chief Justice was bound by the Court's judgement. Chief Justice Sajjad Ali Shah was removed from office based on this case.

Inconsistently with the decision, the present Chief Justice Chaudhry has accepted the stance of the government that Justice Dogar was the Chief Justice until his retirement.

Following the decision, the official website of Supreme Court was hacked by an unknown person. The hacked website made derogatory remarks about Chief Justice Chaudhry.

See also[edit]

References[edit]

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External links[edit]